Citation Nr: 21066375 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 12-17 504 DATE: October 29, 2021 ORDER The appeal for initial ratings in excess of 10 percent prior to May 23, 2018, and in excess of 20 percent thereon and after for the service-connected lumbosacral spine residuals of sprain is dismissed. A separate initial rating of 20 percent, but no higher, for the service-connected right knee arthralgia, status post arthroscopy and patella fracture, based on limitation of extension is granted throughout the period on appeal, subject to the laws and regulations governing the award of monetary benefits. A separate initial rating of 10 percent, but no higher, for the service-connected right knee arthralgia, status post arthroscopy and patella fracture, based on instability is granted throughout the period on appeal, subject to the laws and regulations governing the award of monetary benefits. An initial rating of 10 percent, but no higher, for the service-connected right knee arthralgia, status post arthroscopy and patella fracture, based on symptomatic removal of semilunar cartilage from is granted from May 1, 2012, through July 12, 2015, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. At the July 2021 hearing, and before the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, notified the Board that he wished to withdraw his appeal for increased ratings for the service-connected lumbosacral spine residuals of sprain. 2. Affording the Veteran the benefit of the doubt, his service-connected right knee disability has resulted in extension functionally limited to 15 degrees, but not limited to 20 degrees or more. 3. Affording the Veteran the benefit of the doubt, his service-connected right knee disability has been manifested by slight lateral instability; but he has not been diagnosed with a right knee sprain or ligament tear, and he has not undergone surgical repair for a diagnosed condition involving the patellofemoral complex; nor has his right knee disability manifested in moderate or severe recurrent subluxation or lateral instability. 4. At no time during the period on appeal has the Veteran's service-connected right knee disability resulted in flexion limited to 60 degrees or less; ankylosis; dislocated meniscus causing effusion into the joint; an impairment of the tibia and fibula; or genu recurvatum. 5. From May 1, 2012, through July 12, 2015, the Veteran's right knee disability was manifested by symptomatic removal of semilunar cartilage for which he was not otherwise compensated under other assigned disability ratings. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for initial ratings in excess of 10 percent prior to May 23, 2018, and in excess of 20 percent thereon and after for the service-connected lumbosacral spine residuals of sprain are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a separate initial 20 percent disability rating, but no higher, for the Veteran's right knee disability based on limitation of extension have been met throughout the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5261. 3. The criteria for a separate initial 10 percent disability rating, but no higher, for the Veteran's right knee disability based on instability have been met throughout the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DCs 5256, 5257, 5258, 5260, 5262, and 5263. 4. The criteria for an initial 10 percent disability rating, but no higher, for the Veteran's right knee disability based on symptomatic removal of semilunar cartilage have been met from May 1, 2012, through July 12, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1984 to March 1993 and from July 1995 to December 2006. In November 2013 and in July 2021, the Veteran testified at hearings before the undersigned Veterans Law Judge (VLJ). This case was most recently before the Board of Veterans' Appeals (Board) in September 2018. At that time, the Board remanded the Veteran's appeal for further development. Dismissal Increased Ratings for the Service-Connected Lumbar Spine The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. A veteran or his/her authorized representative may make the withdrawal. 38 C.F.R. § 20.204. Here, at the July 2021 hearing, the Veteran explicitly and unambiguously, and with a full understanding of the consequences, withdrew his appeal for an initial increased rating for his service-connected lumbar spine disability. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to this appeal. As the Veteran has withdrawn this appeal, there remain no allegations of errors of fact or law for appellate consideration of this issue. The Board does not have jurisdiction to review it, and it is dismissed. Increased Ratings for the Veteran's Right Knee Disability Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). A higher initial rating for service-connected arthralgia of the right knee, status post arthroscopy and patella fracture, currently 10 percent prior to May 1, 2012, and from July 13, 2015 The Veteran contends that higher ratings should be assigned for his right knee disability. As discussed in the September 2018 Board remand, while a January 2016 rating decision granted service connection and an initial rating of 20 percent for arthritis of both knees from April 30, 2012,to July 12, 2015, the issue of a higher initial rating for the Veteran's service-connected left knee disability is not currently on appeal. The Board therefore explained in its May 2017 remand for additional development that the above characterization of the right knee disability issue on appeal is valid. As such, throughout the course of the appeal period (January 1, 2007, to present), the Veteran's right knee disability symptoms have been rated as 10 percent disabling prior to May 1, 2012, and from July 13, 2015, under DC 5259 for symptomatic removal of semilunar cartilage. The Board notes that the schedular criteria for rating the knee have been amended once during the pendency of the Veteran's appeal, effective February 7, 2021. As pertinent to the present appeal, DC 5257 was amended, as discussed further below. The other rating criteria applicable to the knee have not been changed. See 85 Fed. Reg. 76,453 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, in this case, the amended diagnostic code can only be applied in this matter from February 7, 2021, forward. Prior to February 7, 2021, DC 5257 applied to knee recurrent subluxation or lateral instability and provided a 10 percent rating for slight recurrent subluxation or lateral instability of the knee. A 20 percent rating was provided for moderate recurrent subluxation or lateral instability of the knee. A 30 percent rating was provided for severe recurrent subluxation or lateral instability of the knee. Words such as "slight," "moderate," and "severe" were not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. 38 C.F.R. § 4.71a, DC 5257 (2020). Effective February 7, 2021, DC 5257 applies to recurrent subluxation or instability and patellar instability. For recurrent subluxation or instability, a 10 percent rating is provided for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is provided for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. A 30 percent rating is provided for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 38 C.F.R. § 4.71a, DC 5257 (2021). For patellar instability under DC 5257, a 10 percent rating is provided for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is provided for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is provided for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a, DC 5257 (2021). Further, Note (1) to the revised DC 5257 states that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id at Note (1). Note (2) to the revised DC 5257 states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. At Note (2). As previously mentioned, other rating criteria for the knee, such as DCs 5256, 5258, 5259, 5260, 5261, 5262, and 5263, remained unchanged in the February 7, 2021, revisions. DC 5260 provides ratings based on limitation of flexion of the leg. Under DC 5260, a noncompensable rating is warranted for flexion of a knee limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Limited motion of a knee disability can also be rated under DC 5261. DC 5261 provides ratings based on limitation of extension of the leg, and a noncompensable rating is assigned for extension limited to 5 degrees or less. Extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension of the leg limited to 15 degrees warrants a 20 percent rating. Extension of the leg limited to 20 degrees warrants a 30 percent rating. Extension of the leg limited to 30 degrees warrants a 40 percent rating. Extension of the leg limited to 45 degrees warrants a 50 rating. 38 C.F.R. § 4.71a, DC 5261. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal extension and flexion of the knee is from 0 to 140 degrees. Separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint, but separate compensable pathology must be shown. VAOGCPREC 9-2004. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Further, under DC 5259, a 10 percent rating is assigned for removal of semilunar cartilage (meniscus) that is symptomatic. 38 C.F.R. § 4.71a, DC 5259. Other diagnostic codes relating to the knees are DC 5256 for ankylosis; DC 5258 for dislocated meniscus with frequent locking, pain, and effusion; DC 5262 for impairment of tibia and fibula; and DC 5263 for genu recurvatum. Those conditions are not shown on VA examinations during the period on appeal, or in the medical evidence of record, and the Board finds that application of these diagnostic codes is not warranted. 38 C.F.R. § 4.71a. Specifically, regarding DC 5258, although the Veteran has been shown to have current dislocated meniscus of the right knee, all VA examinations throughout the appeal period showed that there was no effusion in his right knee, rendering a separate compensable rating under DC 5258 inapplicable. The Veteran underwent multiple VA examinations during the period on appeal which, at least to some degree, examined the severity of his right knee symptoms. These examinations occurred in July 2007; November 2009; April 2012; July 2015; December 2015; May 2018; and June 2019. Further, this appeal has already been remanded three times by the Board (in September 2018, May 2017, and September 2014) for VA examinations to assess the severity of the Veteran's right knee disability and to correct inadequacies with prior VA examinations. Most recently, the VA knee conditions examination obtained pursuant to the September 2018 Board remand did not address the prior examination inadequacies detailed in the remand. Thus, significant time has been used to develop the evidentiary record in this matter in order to resolve the uncertainties regarding the severity of the Veteran's service-connected right knee disability. Such extensive development, however, has not resulted in the precise information needed to assess the Veteran's claim. Regardless, the Board finds that, given the unfruitful prior three remands here, there is no indication that an additional remand would result in the requested development. In resolving this matter in the fairest way for the Veteran at this time, the Board will apply the most favorable findings made on prior VA examinations and resolve all reasonable doubt in his favor. Further, he expressed at the July 2021 Board hearing that he wished for the Board to decide his case at this time based upon the evidence of record rather than to remand for any further development. As for the Veteran's right knee limitation of motion, the most severely limited ranges of motion shown on VA examinations were flexion to 95 degrees (see May 2018 VA knee conditions examination report) and extension to 15 degrees (see November 2009 VA joints examination). Although such findings do not allow the assignment of even a noncompensable evaluation under DC 5260 for limitation of flexion, they do support a 20 percent rating under DC 5261 for limitation of extension. Further, to the extent that no other VA examination during the period on appeal revealed extension to even a compensable level, the Veteran explained at his 2021 Board hearing and to the 2019 VA knee conditions examiner that, at least with his more recent VA examinations, he had been given cortisone injections in his right knee within weeks of the examinations, which caused his pain on examination to not be at the level where it would normally exist. Thus, affording the Veteran the benefit of the doubt with regard to his functional limitation of his right knee range of motion, a 20 percent rating, but no higher, is warranted throughout the period on appeal for limitation of extension. As to his right knee limited flexion, at no time have his flexion measurements been shown to be limited to a compensable 45 degrees, or anywhere even remotely close such that one could presume that the absence of cortisone injections could have brought his flexion to such a level. As previously stated, his most limited range of motion measurement for flexion was 95 degrees in May 2018, 50 degrees greater than a compensable level for limited flexion, and he was never shown to be at a compensable level of limited flexion prior to the examinations where he asserts cortisone injections were compensating for pain. However, the Board's analysis is not yet complete. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board must consider whether increased ratings could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. See DeLuca, 8 Vet. App. at 204-205. In Mitchell, 25 Vet. App. at 43, the United States Court of Appeals for Veterans Claims (Court) clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court discounted the notion that the highest disability ratings are warranted under DCs 5260 and 5261 where pain is merely evident as it would lead to potentially "absurd results." Id. Here, the Veteran has shown and attested functional limitation in his right knee. However, repetitive motion testing was not shown to cause such additional limitation of motion on any VA examination as to suggest that extension or flexion in his right knee was functionally limited to a level warranting higher or additional compensable ratings. Moreover, pain was not shown to occur prior to the stopping points at such a range of motion with regard to either extension or flexion on the right knee. Further, although no VA examiner sufficiently opined on additional functional loss during flare-ups or after repeated use over time of his right knee, the Veteran has not given lay assertions or testimony that flare-ups or repeated use over time of the right knee would result in such levels. The Board also finds that entitlement to a separate compensable rating for the Veteran's right knee instability has been raised by the record, and the Board finds that the evidence is at least in equipoise that such symptoms have been shown. Regarding the Veteran's right knee instability, the Veteran has consistently reported at all VA examination that he used assistive devices of a cane and/or a right knee brace to assist with ambulation due to his right knee disability. Further, he was also shown to have slightly decreased strength and/or muscle atrophy in his right leg in all VA examinations since 2015, with the exception of the 2018 VA examination where he was found to have normal muscle strength, but no response was given as to whether muscle atrophy was present. Although no VA examination during the appeal period revealed any abnormality in instability testing of the Veteran's right leg, the Board finds that, affording the Veteran the benefit of the doubt, the evidence of the Veteran relying upon assistive devices and having limited strength and muscle atrophy shows that he at least experienced slight right knee instability sufficient to warrant a separate 10 percent rating under DC 5257 throughout the period on appeal. In this regard, the Board also notes that DC 5257 provides criteria for rating recurrent subluxation, but no VA examination report shows that he has ever had a history of recurrent subluxation in his right knee, and he has not asserted otherwise. The Board notes that this rating is assigned under the criteria of DC 5257 prior to the February 2021 revisions. Under neither version of DC 5257, either prior to or after the 2021 revisions, is the Veteran entitled to a rating higher than 10 percent. Regarding the pre-February 2021 DC 5257 revisions, the evidence does not support a finding of moderate instability (as needed for a 20 percent rating), in light of all instability testing on VA examinations during the appeal period being normal. See 38 C.F.R. § 4.71a, DC 5257 (2020). Regarding the revised version of DC 5257, a rating for recurrent subluxation or lateral instability requires a diagnosed sprain, incomplete ligament tear, or complete ligament tear, all diagnoses which have not been rendered for the Veteran's right knee. The revised DC also allows for ratings to be assigned for patellar instability. However, although the Veteran has been diagnosed with a patella fracture of the right knee, which meets the criteria under Note (1) for a "diagnosed condition involving the patellofemoral complex," as it involves the patella, the evidence does not show that he underwent surgery for this condition, which is required for a rating higher than 10 percent to be assigned under DC 5257. See 38 C.F.R. 4.71a, DC 5257 (2021) and accompanying Notes (1) and (2). His service treatment records (STRs) note that he underwent right knee surgery in service in 2004 at a local private hospital. A January 2005 report of medical history in his STRs notes that he was then status post right knee arthroscopy with meniscal debridement, and that he also had a right patella fracture, but no surgical intervention was suggested at that time. Although the surgical records from his 2004 knee procedure are not available, his STRs are clear that he did not undergo surgical repair of his patella fracture in 2004, and there is no evidence that he ever underwent surgeries of his right knee since 2004. Thus, a rating higher than 10 percent for instability is not warranted under the revised version of DC 5257. Further, regarding the Veteran's assignment of a rating under DC 5259 for the period from May 1, 2012, through July 12, 2015, the Board finds that he was always shown to have undergone a meniscectomy during service which has continued to be symptomatic. To that effect, he was initially assigned a 10 percent rating under DC 5259, effective January 1, 20017, in the March 2008 rating decision granting service connection for the Veteran's right knee disability. Although the Regional Office (RO) removed this rating during the period where it assigned a 20 percent combined rating under DC 5003 for the Veteran's bilateral knee arthritis, such a removal was improper. The January 2016 rating decision pursuant to which this rating change was enacted noted that the Veteran's rating under 5259 was removed during this period because Note (1) of DC 5003 prevented the assignment of separate additional evaluations for the knees during this time because the regulation stated that such a rating under DC 5003 could not be combined with rating based on limitation of motion. The Board notes that the Veteran's rating assigned under DC 5259 was not based on limitation of motion. Rather, the rating was based upon the Veteran having previously undergone a right knee meniscectomy and his knee remained symptomatic. It cannot be said that the only symptom of his meniscectomy at that time was limited motion, such that the 5259 rating would have been precluded from being assigned concurrent with the 5003 rating. Rather, he reported experiencing right knee intermittent swelling (see 2007 VA General Medical Examination Report) and frequent episodes of joint pain (not limited to only on motion) (see July 2015 VA Knee Conditions Examination Report) on the VA examinations pursuant to which the RO initially assigned his 5259 rating (2007 VA examination) and pursuant to which the RO removed his 5259 rating (2015 VA examination). Intermittent swelling and pain are clearly symptoms of his right knee disability post-meniscectomy, and the RO erred in finding that the assignment of a separate compensable 10 percent disability rating for his right knee symptomatic removal of similar cartilage under DC 5259 could not be allowed concurrent with the 20 percent rating assigned under DC 5003 for arthritis with painful, not otherwise compensable, limitation of motion. Thus, a 10 percent rating under DC 5259 is warranted throughout the entire period on appeal, specifically to include the timeframe from May 1, 2012, through July 12, 2015. This is the highest rating available under DC 5259. The Board has also considered whether separate compensable ratings are available for the Veteran's service-connected right knee disability under other diagnostic codes available for knee disabilities. However, no VA examinations or other medical treatment record during the period on appeal has shown that his right knee disability resulted in symptoms during the appeal period such as ankylosis; dislocated meniscus with frequent locking, pain, and effusion; impairment of tibia and fibula; or genu recurvatum; nor has he asserted otherwise. See 38 C.F.R. § 4.71a, DCs 5256, 5258, 5262, and 5263. As previously discussed, although the Veteran has a current right knee meniscus tear (in addition to the one for which he underwent a meniscectomy in 2004), effusion has not been shown, which is required for a rating under DC 5258. 38 C.F.R. § 4.71a, DC 5258. In conclusion, the Board finds that a separate initial compensable 20 percent rating is warranted under DC 5261 for limitation of extension for the Veteran's right knee; a separate initial compensable 10 percent rating is warranted under DC 5257 for instability of the Veteran's right knee; and an initial compensable 10 percent rating from May 1, 2012, through July 12, 2015, is warranted under DC 5259 for symptomatic removal of meniscus cartilage; and such additional ratings are granted. In reaching this decision, the Board acknowledges that the Veteran limited his appeal for higher ratings for his right knee disability at the 2021 Board hearing. Specifically, he testified that he was seeking a single 20 percent disability rating under a DC and a separate 10 percent rating under another DC. Because this decision grants ratings beyond what the Veteran is seeking, the Board considers this a full grant of the benefit sought on appeal. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.